Thanks, Band on the Run, for your observations. I essentially agree with them, but I will say that SCOTUS will probably cite the Fourteenth Amendment if it outlaws all gay marriage bans on the grounds that denying the right to marry to any citizen of the United States simply on the basis of gender violates that Amendment's guarantee of equal rights. No state in the Union can abridge them.
Now, originally, the Fourteenth Amendment was a provision for civil rights being granted to freed slaves after the Civil War. But like the Bill of Rights, this Amendment is being given a contemporary interpretation that is much broader than its nineteenth century raison d'etre. We saw the same thing with the Bill of Rights, and particularly with the First Amendment. I very much doubt the framers ever thought that the First Amendment would be interpreted to allow a small religious minority to claim that it had the right to call on people's homes univited, to preach to them on their doorsteps, and to offer religious literature for a small contribution. Yet that was how SCOTUS chose to interpret it when ruling on cases involving Jehovah's Witnesses in the twentieth century.
Back in 1967, in the case of Loving v. Virginia, SCOTUS struck down all laws that forbade interracial marriage in the United States. The Court was not content to let the status quo stand. An interracial couple could not get a marriage license in nineteen states prior to the Court's ruling. Such people had to get married in a state that would issue the license. States that banned these ceremonies were forced to recognize the marriage anyway due to the elasticity clause in the Constitution.
Gay marriage is facing the same obstacles that interracial ones did more than forty years ago. I believe the Court will say that gay couples should not have to travel to another state simply to get married. Furthermore, there are the attending issues of inheritance, community property, health and social security benefits, and the like that civil unions do not adequately address. Marriage does; and I believe the Court will seek to create a level playing field for all couples who seek to marry, not just some. So I don't think it will do anything less than to make a sweeping, universal ruling when the case involving California's gay marriage ban it enacted through Proposition 8 is finally heard.
Quendi
